KHUDA BAKHSH vs Mst. GHALOORAN and 6 others
The petitioner filed a suit for possession through pre-emption regarding disputed land, which was initially decreed by the trial court. The appellate court subsequently dismissed the suit, ruling that the plaintiff lacked a superior right because the property forming the basis of his claim was acquired via oral sale rather than a registered deed. The High Court reversed this decision, holding that a superior right based on tenancy was violative of Shariat. Upon appeal to the Supreme Court, it was noted that the plaintiff had asserted a right of pre-emption based on tenancy in his pleadings and evidence, yet none of the lower courts had adjudicated this specific issue. The Supreme Court observed that the failure to address the core question of tenancy and the resulting pre-emptive rights rendered the previous judgments incomplete. Consequently, the Supreme Court set aside the impugned judgment and remanded the case to the trial court for a fresh decision, directing that both parties be given the opportunity to lead further evidence on the issue of tenancy.
- Does the failure of lower courts to adjudicate a material issue like tenancy in a pre-emption suit necessitate a remand for fresh decision?
- Can a claim of pre-emption based on tenancy be decided without a specific finding on the existence of such tenancy?
ORDER
1. ' The plaintiff/respondent brought a suit for possession through preemption in respect of the disputed land which was decreed by the learned trial Court on 16-9-1985. The learned appellate Court, however, dismissed the suit holding that the plaintiff cannot claim superior right as the property on the basis of which he claims such a right was obtained through oral sale and not registered deed. The learned High Court while accepting the revision petition reversed the order of the appellate Court and restored that of the trial Court on the ground that superior right on the basis of tenancy cannot be claimed as it was violative of Shariat. The learned counsel submitted that he claimed first right of pre-emption on the basis of tenancy in his written statement and had reiterated it in his evidence, but there is no discussion on this issue. He read out the written statement and the evidence of the defendant/vendee which contained allegation regarding tenancy over the disputed land. It is, however, curious that none of the Courts has decided this question of tenancy and on that count the pre-emptive right of the parties inter se. Consequently, this appeal is accepted, the impugned judgment is set aside, the case is remanded to the trial Court for decision afresh after affording both the sides opportunity of leading evidence and then to decide it on the evidence already on record and that which is to be brought on the record. No order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.